It has ever been the aim and purpose of our law to separate with distinct and well-defined boundaries, the respective provinces of the judge and jury, and to guard with sedulous care against all invasions by the one upon the province of the other. This principle had become firmly established in our system of jurisprudence before the adoption of the Codes, and it was securely perpetuated among their many other salutary provisions.
The judge is required, after the argument of a criminal causé is concluded, to deliver to the jury a written charge, in which he shall distinctly set forth the law applicable to the case, but he shall not express any opinion as to the weight of the evidence, nor shall he sum up the testimony; *178and it is further provided that it is beyond his province to discuss the facts, or use any argument in his charge calculated to arouse the sympathy or excite the passion of the jury. It is his duty to state plainly the law of the case. Code Cr. Proc., arts. 594, 595.
A charge is unexceptionable only when it states plainly and succinctly the law of the case, and any departure from this plain rule is liable to just criticism and oftentimes constitutes material error. The measure of the law is not filled by mere abstinence of the judge from any positive expression as to the weight of the evidence, or his refraining from a positive discussion of the facts. The spirit of the law requires of him to avoid even the appearance of an intimation as to the facts, and to so guard the language of his charge that no inference, however remote or obscure, may be drawn by the jury as to the facts in evidence from the charge as given them, which is made the law of the case.
Says Judge Roberts, in Brown v. The State, in discussing these provisions : “ Language can hardly be more emphatic in separating and defining the respective provinces of the judge and of the jury. The restrictions imposed on the judge show that it was the intention of the Legislature to prevent the jury from being influenced in any way by the opinion of the judge, however communicated, as to what facts are proved, and as to the proper weight to be attached respectively to those facts, or any of them. * * * A charge, therefore, which extends beyond a plain statement of the law of the case, as required by the Code, may invade the province of the jury, the full and independent exercise of which has been so plainly and earnestly sought to be protected by the Legislature.” 23 Texas, 201.
To the same effect is the language of Judge Bell in Ross v. The State: “The line which separates the province of the judge from that of the jury is oftentimes shadowy, and difficult to be traced. But, inasmuch as the Legislature has committed to the jury the right to exercise their indepen*179dent and. unbiased judgment in determining upon facts, and has denied to the judge the right to comment upon the facts in evidence, the court-should exercise the greatest care in framing instructions to juries, so as not to violate, in the least degree, the spirit of the law upon this subject.” 29 Texas, 501.
Tested by these well-established, rules, the charge in this case is not free from objection: The evidence for the prosecution tended to show that the defendant took the mare which he is charged with stealing from off the range near his home, placed a brand upon it, and that it was not his animal, but belonged to the owner alleged in the indictment. On the contrary, the evidence in defence tended to show that the taking was open, in the presence of another person, and done under a claim of ownership. The evidence being so evenly balanced, it was of material importance to the rights of defendant that the jury should be left to determine the facts, under the law, without any intimation from the court as to the guilt or innocence of the person on trial, or any expression from the court from which the jury could infer that the court had any opinion upon the facts.
The court instructed the jury upon four hypotheses leading to the conclusion of defendant’s guilt, and upon one hypothesis from which they might deduce his innocence, and concluded his charge with a brief summary as to both conclusions. In the course of the charge, he informs the jury that “ a man may steal in broad daylight, and in the presence of all his neighbors, as much so as in the night or in secret, but the manner of taking and using property may be considered by the jury in determining the intent of the defendant.” And in the conclusion, the charge particularly prescribes the exact form of the verdict in case the jury should find the defendant guilty, but fails to tell them what they should do in case they should conclude that he was not guilty.
*180Whether or not the proposition that a man may steal in broad daylight, in the presence of all his neighbors, is correct in the abstract, we are of opinion that in this case it should have been omitted, and that its incorporation in the charge was prejudicial to the rights of the defendant. We are further of the opinion that the spirit, tenor, and effect of the charge as a whole were equally prejudicial, and that it tended to convey, by necessary inference, an impression upon the part of the court that the defendant was not innocent, and that the jury were not likely to reach that conclusion. In so far as the charge presents the issues arising upon the facts to the jury, it is not open to objection; but the court should have contented itself with a clear and simple presentation of those issues, leaving the jury free to exercise their intelligent judgment in the application of the law to the facts.
We deem it proper to add that, under the operation of our present admirable jury-system, the virtue and intelligence of the several counties are usually found in the jury-boxes, and trial judges need have no solicitude as to a proper discharge of their functions under the law. Instances are not likely often to occur wherein jurors will mistake their duties under the law, when the law applicable to the case has been plainly given them in the charge of the court.
Because of error in the charge, the judgment is reversed and the cause remanded.
Reversed and remanded.